The Constitution and Financial Freedom: Analyzing First Amendment Claims About Cryptocurrencies

Authors

• Mithun Imbulamure

First Page

429

Abstract

In recent years, the United States has intensified regulatory oversight of cryptocurrency technologies. In August 2022, the Treasury Department's Office of Foreign Assets Control sanctioned Tornado Cash, a cryptocurrency mixer, leading to the prosecution and conviction of its developers for operating an unlicensed money transmitting business. Congress also amended § 6050I of the Tax Code through the Infrastructure Investment and Jobs Act, extending cash transaction reporting requirements to digital assets. These developments prompted cryptocurrency advocates to assert First Amendment protections for their activities, arguing that compelled disclosure requirements violate associational privacy and that computer code constitutes protected speech. The government defends these measures as necessary to combat money laundering, terrorist financing, and tax evasion. This Note proposes that courts should apply a context-dependent framework to cryptocurrency First Amendment claims, evaluating whether specific uses of cryptocurrency technology further democratic values. First, when cryptocurrency transactions involve expressive activities, courts should apply exacting scrutiny to compelled disclosure requirements. The immutability of blockchain technology creates privacy risks that may equal or exceed those the Supreme Court found constitutionally problematic in traditional disclosure contexts. Second, when cryptocurrency code is published for academic discussion or peer review, courts should apply strict scrutiny to government restrictions. Third, when cryptocurrency code operates for only for functional purposes, courts should recognize these activities as ordinary products subject to rational basis review. This approach, grounded in existing First Amendment doctrine, protects genuine expressive activities while enabling effective regulation of commercial operations that facilitate illicit conduct.

Recommended Citation

Mithun Imbulamure, The Constitution and Financial Freedom: Analyzing First Amendment Claims About Cryptocurrencies, 20 Brook. J. Corp. Fin. & Com. L. 429 (2026).
Available at: https://brooklynworks.brooklaw.edu/bjcfcl/vol20/iss2/6